Lesotho: TRC Launches Fresh War On IEC

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15 September 2021

The Transformation Resource Centre (TRC) has launched a fresh war against the Independent Electoral Commission (IEC) over its failure to hold by elections in five vacant constituencies.

The human rights body has written to the electoral organisation demanding that the latter hold the by-elections in the five constituencies which do not have representation in parliament after the deaths of four legislators and the appointment of another as ambassador.

The TRC states in its letter dated 7 September 2021 that the IEC is mandated by the Constitution to hold by-elections in constituencies without representation in parliament. Not doing so was an infringement of the human rights of people living in those constituencies as they were deprived of the rights to partake in politics through representatives of their choice.

The by-elections in five constituencies were suspended by the government over lack of funds. The government served the IEC with a savingram on 3 June 2021 informing it that the electoral body should instead start preparing for next year's national elections.

"Your office is kindly informed to note that the budget for by-elections was not included in the 2021/2022 budget estimate," reads the savingram.

"Therefore, our recommendation is that the IEC should begin preparations for the 2022 general elections."

The by-elections are overdue in the five constituencies of Makhoroana, Maliepetsane, Thupa Kubu, Mohale's Hoek and Kolo. The constituencies are currently without representation following the deaths of four legislators between 2019 and 2021.

The deceased legislators are Lefu Hlomelang (Makhoroana), Mpalipali Molefe (Maliepetsane), Sentje Lebona (Mohale's Hoek) and Putsoane Leeto (Kolo). Another vacant constituency is Qacha's Nek whose legislator, Pontšo Sekatle was appointed Lesotho's ambassador to Belgium in February this year. They were all from the main ruling All Basotho Convention except the Democratic Congress's Leeto.

TRC Executive Director, Tsikoane Peshoane, wrote to the IEC this week reminding it of its constitutional mandate to hold the by-elections to ensure that each constituency has a representative in parliament.

"The TRC notes with concern the silence and lack of progress over the need to hold by-elections for the constituencies; 'Makhoroana, Kolo, Maliepetsane, Mohale's Hoek and Qacha's Nek. These five constituencies have been without representation in the National Assembly following the deaths of their legislators between 2019 and 2021, with the exception of Qacha's Nek whose member of parliament was deployed to a foreign mission," Mr Peshoane states in his letter.

"The TRC wishes to remind the good office of the Commission (IEC) that elections, both general and by-elections, are not optional but are a matter of a constitutional dictates. The TRC further wishes to remind the IEC that it has a constitutional obligation, in terms of section 66A that outlines the powers, duties and functions of the Electoral Commission; to facilitate the holding of the elections that is free and fair.

"In particular, on section 66A 1(b), the TRC wishes to draw the attention of the IEC to the provision which reads: 'The Electoral Commission shall have the following functions... to organise, conduct and supervise, in an impartial and independent manner, elections to the National Assembly and referenda under the provisions of the Constitution and any other law'."

The TRC insists the IEC's mandate to hold the by-elections as dictated by the Constitution and the National Assembly Electoral Act (2011) was not negotiable.

"In light of the National Assembly Electoral Act, the TRC draws the attention of the IEC to the provisions of section 1189(1) which stipulates that for purposes of filling a vacancy in respect of a constituency seat in the National Assembly, by-elections shall be held as promulgated under section 38. Section 38 dictates that, 'The King, acting on the advice of the Council of State, shall proclaim the day on which elections in a constituency are to be held within four days of being advised by the IEC that there is a vacancy in the membership of a constituency in the National Assembly."

Mr Peshoane also states that he is aware that the same section 38 of the National Assembly Electoral Act does not allow for by-elections to be held six months prior to the dissolution of parliament. However, he argues that the by-elections should have been held a long time ago. He says that the IEC will be infringing human rights if it does not proceed to hold the by-elections.

"The TRC is of the considered opinion that the holding of by-elections in the mentioned constituencies is long overdue, and with general elections set for September 2022, the status quo is characteristic of delaying tactics that should not be allowed in a democratic dispensation.

"The TRC further wishes to draw the attention of the IEC to the benefit that the people of the aforementioned constituencies are being denied due to failure to organise for the holding of the by-elections. Section 20 of the Constitution holds that every citizen of Lesotho shall enjoy the right to take part in the conduct of public affairs, directly or through a freely chosen representative.

"In light of the aforementioned section, the TRC is of the considered position that failure to hold the by-elections is a direct violation of the rights of the people of the constituencies currently without representation. They are being denied the right to participate in the conduct of public affairs through freely elected representatives. This is a direct violation of the Constitution.

"The TRC strongly recommends that the IEC should accordingly inform the Council of State of the vacancies in the membership of the constituencies in the National Assembly to enable the Council of State to advise His Majesty the King to proclaim the day on which elections in these five constituencies can be held," Mr Peshoane states in his letter.

IEC spokesperson, Tuoe Hantsi, told the Lesotho Times that he had not seen the letter but said the IEC would respond if it was delivered to their offices.

"I have not seen the letter but the TRC should be rest assured that the IEC will respond to such a letter after receiving and considering its contents. The IEC always ensures it responds to communication relayed to it," Mr Hantsi said.

The two parties are already locked in a legal battle in which the TRC wants the court to order the IEC to deregister 41 political parties for failing to comply with the National Assembly Electoral Act. The matter is opposed by the IEC and is still pending before the High Court.

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